Section 230 and Fake News

Facebook brands itself as a company that aims to “give people the power to build community and bring the world closer together.” However, following the 2016 presidential election, the social media platform has come under growing scrutiny as part of a larger concern of Russian interference in the election. That concern is culminating this week with Facebook founder and CEO, Mark Zuckerberg, testifying in Congress regarding Facebook’s alleged violations of user privacy in its dealings with the political data mining firm Cambridge Analytica. Facebook has also been tied to Russian disinformation campaigns designed to manipulate the 2016 election, termed “fake news.”

Despite growing public outcry for Facebook to be held accountable for content disseminated through their service, it is largely shielded from liability by Section 230 of the Communications Decency Act. Section 230 of the Act dictates that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” In Zeran v. America Online, Inc., the Fourth Circuit noted that Section 230 was enacted with the intent to remove disincentives to self-regulation created by previous decisions which suggested that service providers assumed an editorial role with regard to user content, thus becoming publishers who were legally responsible for libel and other torts committed by users. The court in Zeran noted that without Section 230, online platforms who “regulated dissemination of offensive material on their services risked subjecting themselves to liability, because such regulation cast the service provider in the role of a publisher.”

While Section 230’s broad immunity for online services was intended to prevent the “obvious chilling effect” caused by the threat of tort liability-if services such as Facebook were required to monitor every message republished on their platform-the same sweeping immunity has led to new problems over 20 years later. The integration of social media into modern life has also led to an increase in cyberbullying, harassment, and abuse through the platforms that were intended to bring people together. Lawsuits have even been brought accusing social media of fostering terrorist activities. Under Section 230 of the Act, victims of such online activity have little civil recourse. Additionally, the proliferation of social media in our daily lives means that a growing segment of the population turns to its social media feeds for news. This reliance on social media as a news source makes the spread of fake news and political misinformation on these sites particularly problematic.

Social media companies such as Facebook, Google, and Twitter have always held themselves out as neutral platforms for the sharing of information. The government has largely left them to self-police. However, Section 230 of the Communications Decency Act removes a key incentive for such platforms to fully accept responsibility for content disseminated through their sites and police for harmful content.

Some have forwarded that Section 230 is analogous to protections given to gun manufacturers from legal responsibilities caused by their product. Others view Section 230 as a protection of the freedom of online speech and believe that modifications will result in a dramatic chilling of speech. In any case, the chilling of Internet activity that Section 230 was intended to prevent is arguably less salient over 20 years after its enactment. Serious consideration should be given to overhauling Section 230 in order to create the impetus for social media sites to police for abusive, damaging, and false information promulgated through their platforms. Section 230 does not need to be abolished completely, but its broad protections need to be more carefully tailored to meet current needs.